judicial activism

Prayers at graduation ceremonies are in the news again as a federal judge has ruled that the First Amendment’s “non-establishment” clause forbids even student-initiated supplications.

The federal judge’s last sentence of the article linked above [“We don’t put the Constitution to a vote,”] illustrates an important distinction between pure democracy and the rule of law under a constitutional republic. But it neglects the crucial point that, as ACLU co-founder Justice Felix Frankfurter once acknowledged,

“The ultimate touchstone of constitutionality is the Constitution and not what we [the justices] have said about it.” -Felix Frankfurter, concurring in Graves v. New York, 306 US 466, 491-2 (1939)

We may take comfort from the assurance of Thomas Jefferson, the author of the “separation of church and state” metaphor that has so clouded First Amendment jurisprudence: “Though written constitutions may be violated in moments of passion or delusion, they furnish a text to which those who are watchful may again rally.”

It was Justice Byron White who recently noted that “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law [sic] having little or no recognizable roots in the language or design of the Constitution.”

Small wonder that recent polling suggests that 77% of Americans believe our courts have gone too far in restricting free exercise of religion; 76% support public displays of Ten Commandments; and 90% support keeping “one nation under God” in our Pledge.

Founder and Patriot John Adams once remarked to Governor Dickinson that “We Americans are not to be conjured out of our senses by the words ‘British Empire’ as we know that Britain is a constitutional monarchy.”

Similarly, we Americans today are not to be “conjured out of our senses” by the words “separation of church and state.” Let’s continue to defend our Constitution’s text and heritage as we stand for “separation of atheism and state.”

As George Orwell once observed, “We have now sunk to a depth at which restatement of the obvious is the first duty of intelligent men.” AJA’s point in calling attention to America’s “Organic Laws” is to espouse the obvious reality contained in our Declaration of Independence – that is, that law comes from God and the self-evident reality of objective truth. In other words, the inscription on America’s coins is the “National Motto” and not the “National Anachronism” [i.e., “out-of-date application or wrong-period attribution of an event”]

And let’s remember that it was judges’ “perversion of judgment” rather than “walking in God’s ways” that was the catalyst directly resulting in the leaders of Israel abandonment of self-government under God to ask for a king (i.e. authoritarianism) in 1 Samuel 8:3+.

Otherwise, we abandon our children to an “Orwellian” future:

“You are a slow learner, Winston,” said O’Brien gently. “How can I help it?” he blubbered. “How can I help seeing what is in front of my eyes? Two and two are four.” “Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” -George Orwell, 1984

Justice Clarence Thomas deserves commendation for suggesting that “a more fundamental rethinking of…Establishment Clause jurisprudence remains in order.” My expectation is that those prayer-wishful students in Indiana would say, “Amen to that!”

“I am so impressed with the great work you are doing! You have a powerful team working with you. America needs you more than ever.You give me hope!”– William J. Federer, Jr.
Speaker and best-selling Author

“The judges are already tracking down their predecessors to have each one sign the Bible you presented in the tradition of the Supreme Court. Thanks again!”–Retired Judge Tim Taft
Texas First Court of Appeals

What Supreme Court Justices are saying about the Harlan Bible:

“It was a thrilling moment when I signed my name in the Bible which…contains the signatures of all the Justices for the past 100 years. Thank you for sending your article…. I found it inspiring.
–Justice Samuel A. Alito, Jr.

“I read with special interest your account of the first Justice Harlan and his Bible.… Thank you for an engaging pause in the day’s occupations.”—Justice Ruth Bader Ginsburg

Retired Judge Darrell White has received several acknowledgment letters from active United States Supreme Court Justices complimentary of his analysis of the history associated with the venerable tradition of the Harlan Bible.

You can read the full article, “Historical Significance of a Kentucky Colonel Named Harlan,” as published in the Baton Rouge Bar Journal by clicking here.

“If [a law] is wrong, the ultimate precedent is the Constitution. It’s not what we say it is, it’s what it actually says. And I think we have to be humble enough to say ‘we were wrong.'”
— Justice Clarence Thomas, February 2009

Thomas was responding to a question about the Court’s review of the McCain-Feingold Campaign Finance Law. His quote echoes former Justice Felix Frankfurter (who happened to have been the president of the ACLU before his court days). Here is Frankfurter’s quote:

“The ultimate touchstone of constitutionality is the Constitution, and not what we have said about it.” — Felix Frankfurter, Graves v. New York, 306 US 466 (1939)

Here is an audio clip of Justice Thomas’ remarks:

Here are a few more quotes to chew on:

“[I]n the lapse of [time], changes have taken place which in particular passages … obscure the sense of the original … [and] present wrong signification or false ideas. Whenever words are understood in a sense different from that which they had when introduced …. mistakes may be very injurious.” Noah Webster in Preface of the Webster Bible

“Though written constitutions may be violated in moments of passion or delusion, they furnish a text to which those who are watchful may again rally.” — Thomas Jefferson

“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” — Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p322.

“The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intentions of the parties.” Justice Joseph Story, III Commentaries on the Constitution of the United States §400 (1883) at p383

This is an interesting synopsis from Ray Comfort’s Blog today. The federal courts have played a strong role in shaping American culture in the 20th century via its decisions:

“There was a time in U.S. history when American school children began each day with public prayer. The entire class prayed together. That is now “illegal.” This is why:

• The Supreme Court first ruled against public school prayer in the 1962 case of Engle v. Vitale. The decision struck down a New York State law that required public schools to begin the school day either with Bible reading or recitation of a specially-written, nondenominational prayer.

• One year later, in Abington vs. Shempp (1963), the Supreme Court struck down voluntary Bible readings and recitation of the Lord’s Prayer in public schools.

1. In this context, our kids can no longer pray in public. There have been many ensuing court cases over the liberty to engage in public prayer:

“U.S. Supreme Court rules, 6-3, that prayer before football games in Texas is unconstitutional,”
https://www.freedomforum.org/templates/document.asp?documentID=12727

Barack Obama concluded his 9/8/09 speech to a captive audience of America’s government school-educated children with this sign-off: “Thank you, God bless you, and God bless America.” (emphasis added) If Obama – in his official governmental capacity – can compel the attention of America’s public schools for an affirmation of God’s blessings, shouldn’t we follow his example? Henceforth, God-fearing public school teachers might start their school days with a reminder – verbatim from Obama’s lips – to their students:

“Get serious this year. Put your best effort into everything you do. I expect great things from each of you. So don’t let us down – don’t let your family or your country or yourself down. Make us all proud. I know you can do it. Thank you, God bless you, and God bless America.”

Justice Potter Stewart

Actually, this language is not unlike the New York Board of Regents’ prayer that was nullified in the extraordinary 1962 case of Engle v. Vitale: “Almighty God, we acknowledge our dependence on thee, and we beg thy blessings upon us, our parents, our teachers, and our country.” Earl Warren’s supreme Court, in derogation of the free exercise clause those justices were sworn to uphold, nullified that prayer. In that case, Potter Stewart (1915-1985), the only justice with prior judicial experience before taking his position on the U.S. supreme Court, filed this dissent:

“A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them and upon their parents, their teachers, and their country. The Court today decides that in permitting this brief nondenominational prayer the school board has violated the Constitution of the United States. I think this decision is wrong.

“The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody’s religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any ’embarrassments and pressures.’ But the Court says that in permitting school children to say this simple prayer, the New York authorities have established ‘an official religion.’

“With all respect, I think the Court has misapplied a great constitutional principle. Continue reading →

A California appeals court ruling clamping down on homeschooling by parents without teaching credentials sent shock waves across the state this week, leaving an estimated 166,000 children as possible truants and their parents at risk of prosecution. The homeschooling movement never saw the case coming.”At first, there was a sense of, ‘No way,’ ” said homeschool parent Loren Mavromati, a resident of Redondo Beach (Los Angeles County) who is active with a homeschool association. “Then there was a little bit of fear. I think it has moved now into indignation.”

One of the purposes of Retired Judges of America is to call into question the rulings of courts that violate the principles of the American Experiment. This case is a clear example of judicial tyranny over civil liberty. Parental choice in education strikes at the heart of the American pioneering spirit. The argument could be made that educational choices that families make are guaranteed by the birth certificate of our nation, the Declaration of Independence and that home educating one’s students is both a God-given right to liberty and to the pursuit of happiness*.

RJA’s mission is to illuminate how these “organic” foundational laws of our nation still apply and to promulgate them to the next generation.

Dissenting in Moore v. City of East Cleveland, Justice Byron White wrote, “The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”

We, the Retired Judges of America, condemn this act of judicial activism and call on the California Supreme Court to overturn the Appellate Court’s ruling.

*In 1920 the Supreme Court asserted that parent’s rights to raise and educate their children was a “fundamental” type of “liberty” protected by the Due Process Clause. See generally, Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). This liberty includes the “right to the care, custody, management and companionship of [his or her] minor children” which is an interest “far more precious than property rights” May v. Anderson, 345 US 528, 533 (1952).